Caldwell v. Caldwell

Citation137 S.E. 444
Decision Date10 March 1927
Docket Number(No. 12174.)
CourtUnited States State Supreme Court of South Carolina
PartiesCALDWELL et al. v. CARROLL et al. CALDWELL v. SAME (two cases). MCMILLAN. v. SAME.

On Petition for Rehearing April 7, 1927.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Colleton County; John S. Wilson, Judge.

Separate actions by Susan A. Caldwell and another, by Susan A. Caldwell, by W. D. Caldwell, and by Elizabeth E. McMillan, against J. L Carroll and others. From an order overruling demurrers and motions to make the complaints more definite and certain, defendants in each case appeal. Affirmed.

The order of Judge Wilson overruling the demurrers, as well as the motions to make the complaints more definite and certain and the several motions and demurrers therein, are as follows:

Motion of J. L. Carroll to Have the Complaint Made More Definite and Certain.

(1) By stating in what respect the surety, the American Surety Company, is liable upon the bond written for him by the said surety company, and by setting out in the complaint so much of the said bond as provides liability against the surety company for damages for the tort alleged in the complaint.

(2) By stating the names of the agents of the defendant J. L. Carroll who committed the alleged tort.

(3) By stating in what manner the fire got out or away from the agents of the defendant J. L. Carroll, and what said agents were doing at the time the alleged tort was committed.

(4) By stating in what manner the defendant county of Colleton could be made a party and held liable for such tort as is alleged in the complaint in the absence of a statute creating such liability.

Motion of American Surety Company to Make Complaint More Definite and Certain.

1. By alleging the names of the agents and servants of the defendants Colleton county and J. L. Carroll, or either of them, who set out the fire and committed the acts alleged in the third paragraph of the complaint.

2. By alleging in what manner the fire was set out or put out, and for what purpose it was put out by either the agents and servants of Colleton county, or J. L. Carroll; and whether it was a necessary part of constructing the road that the fire should be set out, and in what particulars such necessity existed.

3. By alleging the connection or relationship between the defendants Colleton county and J. L. Carroll, and whether the road was being constructed by them jointly, or by Colleton county, or by J. L. Carroll; and also what connection Colleton county had with the construction of the road that would bring it under any legal liability for the acts and things alleged in the complaint as constituting the cause of action of plaintiff.

4. By alleging in what particular the defendant American Surety Company is liable to plaintiff for the alleged negligent acts of the defendants Colleton county and J. L. Carroll, through their agents and servants, on account of the bond it issued as surety for the defendant J. L. Carroll; and in what particulars the said acts of negligence constituted a liability against the defendant American Surety Company, under its said bond; and by setting out in the complaint such provisions of the said bond under which it is claimed liability thereunder on account of the acts of negligence alleged in the complaint.

Motion of Colleton County to Make Complaint More Definite and Certain.

(a) Whether or not the defendant J. L. Carroll was an agent or servant or officer of Colleton county, or whether or not he was a contractor in the building of the road referred to in the complaint.

(b) That if the said J. L Carroll was a contractor, to allege under what terms and conditions he contracted for the building of the said road, and what officers of Colleton county entered into such a contract in behalf of Colleton county, with him.

(c) By more particularly designating the public road referred to in the complaint by stating at what point on the Bamberg county line said road terminated and whether or not the said road was one of the highways designated in the act of the General Assembly of South Carolina, known as the Pay As You Go Act, appearing in the Acts of 1924, at p. 1199.

(d) By alleging specifically what officers, agents, or servants of the defendant Colleton county set out the said fire or negligently allowed the same to be put out along the right of way of the said road.

(e) By alleging specifically whether or not the defendants Colleton county, through its officers, servants, or agents, set out the fire, or whether they allowed the said fire to be put out along the right of way of the said road. In other words, to elect and allege one or the other of these charges, but not both.

(f) By specifically alleging with particularity the acts of the defendant Colleton county out of which the said alleged negligence, willfulness, wantonness, carelessness, and recklessness arose.

That the said motion will be based upon the complaint in this action.

Demurrer of J. L Carroll.

1. Because it is apparent upon the face of the complaint that the defendant county of Colleton could not be held liable as a party defendant in this action for such a tort as is alleged in the complaint, in the absence of a legislative enactment expressly creating such liability and allowing a recovery therefor; so that the defendant county of Colleton should be dismissed from the summons and complaint.

2. Because on the face of the complaint it does not appear that the defendant American Surety Company would be liable under the law fur such a tort as is stated in the complaint, or for any tort arising out of the transaction referred to in the complaint, in so much as a surety company, under the law, is not liable for any tort committed by its principal in the absence of a specific provision in such bond therefor, and no such provision is alleged in the complaint.

So that, such complaint, in respect to the defendants the county of Colleton and the American Surety Company, does not state facts sufficient to constitute a cause of action in respect to either of them; and, besides, there is a misjoinder of parties apparent on the face of the complaint; so that the defendants American Surety Company and the county of Colleton should be dismissed from the summons and complaint.

Demurrer of American Surety Company.

(1) That the complaint does not state facts sufficient to constitute a cause of action against either of the defendants American Surety Company and county of Colleton, and that on the face of the complaint there is a misjoinder of parties, and the complaint against the defendants American Surety Company and county of Colleton should be dismissed.

(2) Because the county of Colleton cannot be held liable under the allegations of the complaint for the acts of negligence and the results therefrom alleged in the complaint, because there is no statutory provision creating such liability as to permit a recovery therefor, and the complaint should be dismissed as to such defendant.

(3) Because under the facts alleged in the complaint it does not appear that the defendant American Surety Company could be liable for the acts of negligence and the results therefrom as alleged in the complaint, or for any damages arising from the matters and things alleged in the complaint; and it does not appear on the face of the complaint that said defendant became liable under its bond for any tort committed by the defendant J. L. Carroll, or his agents and servants, or that said acts arose by reason of the construction of the road or were a necessary part thereof.

Demurrer of Colleton County.

(a) In that it does not appear upon the face of the complaint that the plaintiffs received bodily injury or damage in their person or property through a defect or negligent repair of a causeway or bridge, or any ferry operated by the county.

(b) In that it does not appear that the plaintiffs received any bodily injury or damage in their person or property through a defect or negligent repair of a highway.

(c) In that there is no statute imposing any liability upon the defendant Colleton county under the facts alleged in the complaint.

(d) In that the complaint shows upon its face that the injuries complained of were not received while the plaintiffs were traveling or otherwise using the said public road.

(e) In that it is not alleged in the complaint that the said public road was a highway.

(f) In that the complaint shows upon its face that the said public road was being constructed, and was not being repaired, and it fails to allege any defect in the said public road or any negligent repair thereof.

Order Overruling Motions and Demurrers.

By consent of all parties to the above-entitled causes, the four notices to make the several complaints more definite and certain, served by each of the defendants herein, and the four demurrers interposed to the several complaints in the several causes by each of the defendants herein, were heard before me at Orangeburg, S. C, on October 8, 1925.

Counsel for the several parties vigorously argued these matters before me, and I have given the motions and demurrers the most careful consideration.

I am satisfied that the several motions in these causes to make the complaints more definite and certain should be overruled. The Code provision is to the effect that the court may require a pleading to be made more definite and certain by amendment if the allegations of the pleadings are so indefinite or uncertain that the precise nature of the charge is not apparent. However, a careful examination of the allegations contained in the several complaints in the above causes will show that they are neither indefinite nor uncertain, and the facts alleged are so stated as to leave no doubt in the mind of any reasonable person what the precise nature of the charge is.

The four demurrers interposed in these actions, among other things, raises the issue that the allegations of the complaint do not come within the provisions of that section of...

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4 cases
  • Caldwell v. Carroll
    • United States
    • South Carolina Supreme Court
    • 10 Marzo 1927
  • Spigner v. Provident Life & Accident Ins. Co.
    • United States
    • South Carolina Supreme Court
    • 19 Diciembre 1928
    ... ... but a denial of the law arising on those facts. Blackstone ... See, also, Caldwell et al. v. Carroll et al., 139 ... S.C. 171, 137 S.E. 444, Citizens' Bank v. Lynch, ... 124 S.C. 498, 117 S.E. 715 ...          In ... ...
  • Ruh v. Metal Recycling Servs., LLC
    • United States
    • U.S. District Court — District of South Carolina
    • 30 Enero 2020
    ...of a contractor known to be unworthy of trust ." Conlin , 15 Rich. at 211-12 (emphasis added). Ruh also relies on Caldwell v. Carroll , 139 S.C. 163, 137 S.E. 444 (1927), in which the court stated a contracting party is not liable for "wrongful or negligent manner [of performing job] by a c......
  • Spigner v. Provident Life & Accident Ins. Co
    • United States
    • South Carolina Supreme Court
    • 19 Diciembre 1928
    ...of the facts alleged in a pleading, but a denial of the law arising on those facts. Blackstone. See, also, Caldwell et al. v. Carroll et al., 139 S. C. 171, 137 S. E. 444, Citizens' Bank v. Lynch, 124 S. C. 498, 117 S. E. 715. In Oliveros v. Henderson, 116 S. C. 77, Syl. 2, 106 S. E. 855, h......

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